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Hone and the lawyers

Written By: - Date published: 5:45 pm, January 27th, 2011 - 21 comments
Categories: maori party, Maori seats - Tags:

The Maori Party has budgeted $22,000 for legal advice regarding the complaint made against Hone Harawira for stating the obvious, and hired Mai Chen to boot, to coin a phrase. Chen has pointed to the decision in Peters v Collinge where Justice Fisher stated that disciplinary matters were political issues and all that was required for parties was to follow their procedures. Other legal bloggers  such as Imperatorfish and Andrew Geddis at Pundit opine that as long as it follows its procedures the Maori Party is free to dismiss Hone.

I am not a lawyer but have had experience of dealing with a few disciplinary complaints and requests for expulsion. I agree with the Honourable judge that these matters are fundamentally political, and  also that it is absolutely crucial that any Party scrupulously follows its own procedures.

There is a strange anomaly in the Maori Party Constitution. It first of all states that all decisions of its governing Council are to be made by consensus, and goes on to attempt a definition of what this means.

(Consensus may be defined as a process of ‘whakawhitiwhiti whakaaro,’ To arrive at an outcome at which those present, are accepting’).

However there are no such procedural requirements specified for its five-person disciplinary committee, whose quorum is three, and where it appears the matter will now head.  Nor are any powers specified as to what this committee may or may not do to “seek resolution of the matter”, simply that it report decisions to the National Council. It is unclear whether this is for endorsement or for information. If it is for endorsement it is unlikely to achieve consensus, given that Te Tai Tokerau is represented on the Council. Unlike the Labour Party constitution, there is no mention of natural justice or any right of appeal. It looks a bit like kangaroo kaupapa to me.

Mai Chen also said that issues relating to Hone have been under consideration for some time. The provision in the Constitution under which the complaint is to be dealt with was passed at the party’s annual hui last October. It would be interesting to know if Mai Chen’s advice was also sought in its drafting, and if that was where some of the $22,000 was spent. Even Mai couldn’t have spent all that this year. Either some of it is gone already or the Maori Party thinks the matter  will end up in court.

In my experience, just as the judges are wise to stay hands off,  the last people political parties want involved in these matters are lawyers. As with Richard Prebble and Labour in 1988, in the end it is the party that suffers.

21 comments on “Hone and the lawyers ”

  1. Colonial Viper 1

    I am sure the ordinary members of the mP will have no problem that their subs are being spent to boot out their favourite MP.

  2. Scott 2

    Other legal bloggers such as Imperatorfish and Andrew Geddis at Pundit opine that as long as it follows its procedures the Maori Party is free to dismiss Hone.

    Mike, while that’s true, the problem then is in determining what those procedures actually are. In this respect the Maori Party constitution is unhelpful, to say the least. That is where the party could potentially become unstuck if this matter ended up in the courts.

    It would be interesting to know if Mai Chen’s advice was also sought in its drafting, and if that was where some of the $22,000 was spent. Even Mai couldn’t have spent all that this year.

    I wouldn’t be so sure. A lawyer who is recognised as amongst the top in their field is probably charging out at somewhere north of $500 per hour plus GST. It could be a lot more than that.

    In my experience, just as the judges are wise to stay hands off, the last people political parties want involved in these matters are lawyers. As with Richard Prebble and Labour in 1988, in the end it is the party that suffers.

    Given the dog’s breakfast that is the Maori Party consititution it was probably inevitable, and was probably prudent to get some legal advice. But making Mai Chen their de facto spokesperson might have been going too far…

  3. BLiP 3

    Heading for the lawyers? Heh – what a very pakeha Tory thing to do.

  4. The Voice of Reason 4

    The disciplinary committee really can’t make a decision, give that it has no clear mandate to do so and to even try would lead straight to a messy court case. In fact, from what I read above, the party have no capacity to expel an MP at all, as long as he or she has at least one supporter on the council. So they’ll back down, I guess.

  5. Jenny 5

    The differences between a democratic organisation and an autocratic one,

    -The latter often relies on top down bureaucratic procedure and legalisms, that removes decision making from the flaxroots, which is then imposed on the membership.

    -The former engages in full and open debate and discussion amongst its flax roots members before coming to a majority collective decision that is then imposed on the leadership.

    The Alliance experience shows which model will keep its supporters and which will be abandoned at the polls.

    • McFlock 5.1

      Having the dictator hang around for however-many months shitting on his own party (or so claimed at the time) also helped, FWIW.

    • Drakula 5.2

      Yes it was sad how Jim Anderton couldn’t work with very talented people like Laila Hari etc.

      Anderton did some great things like establish Kiwibank (that Key wants to flog off) and he wants to include dental treatment into the health program, but if it wasn’t for his bloody ego he would be a serious contender in challenging the present regime.

      And I say that because I don’t feel easy about Geoff!!!

  6. I feel a little sympathy for them on this one. The constitution is loose, definitions are hazy, whatever they do someone will point the finger and say “that’s not very maori mate”. There can be no good outcomes for the maori party while they refuse to hear the truth and they definately are not listening. Change the leadership, go back to maori instead of the gnats is the answer but as many have said that seems too hard for them and that will cost them dearly come the election.

  7. Drakula 7

    It seems increadable that the party heirarchy hires a lawer because it can’t interpret it’s own constitutional procedures.

    And their constitution has no right of appeal and the heirarchy does not tolerate honest criticism.

    May be it’s time to fix the broken watch!!!!!!!

    • Colonial Viper 7.1

      Why fix the watch? If you wait just a bit longer, the Maori Party’s watch will be showing the right time again. Briefly.

  8. …attempt a definition of what this means… no such procedural requirements specified for its five-person disciplinary committee… Nor are any powers specified as to what this committee may or may not do… It is unclear whether this is for endorsement or for information… there is no mention of natural justice or any right of appeal.

    And the Maori Party aren’t alone in having a constitution that’s got more holes than a colander. If a constitution this defective were presented to the Registrar of Incorporated Societies or the Companies Office it would be rejected and sent back for re-drafting.

    Or at the the very least the members of such a body would have a clear recourse to the courts to sort out any disputed interpretation.

    Yet in Peters v Collinge and in the case myself and David Stevenson brought against Peters, Henare and Woollerton the courts have held that political parties can exist under any damn constituion they please. If I started a party tomorrow I could adopt the text of Dr Seuss as its constitution and provided I could find 499 other lunatics, I’d have no problem.

    Yet the open and democratic functioning of political parties in turn affects the openness, accountability and integrity of our democracy.

    It’s not something the courts can fix: it needs legislation. Something declaring a political party to be an incorporated society (with such special provisions, if any, as may be necessary) would do it.

    To allow this to continue makes a farce out of elections. People vote for the Maori Party knowing (and perhaps even wanting) that Hone will be an MP, and then might find that choice negated… perhaps… maybe… depends… we’re not quite sure…

    That’s bullshit. It’s no way to run an organisation which, in turn, runs the country.

  9. Jenny 9

    legalisms –

    How many angels can dance on the head of a pin.

    Democracy –

    The angels decide themselves if they should even be dancing on the head of a pin, at all.

  10. Drakula 10

    Rex has a point; being an incorporated society gives that organisation a fair amount of protection, which is important because the society is taken to court or sued but the individual members are protected.

    Political parties may be protected by parliamentary privalidge I don’t know.

    • Colonial Viper 10.1

      Political parties may be protected by parliamentary privalidge I don’t know.

      Quite certain that they are not.

      Even MP’s saying stuff outside of Parliament are not protected by Parliamentary privilege.

    • Dracula

      being an incorporated society gives that organisation a fair amount of protection

      It does but interestingly Labour, the Nats and the Maori Party amongst others are not incorporated. Theoretically if they were sued successfully the members would have to coff up.

      Parliamentary privilege applies only to things said in the House during debates or in committee during their hearings.

    • lprent 10.3

      As far as i’m aware, only MP’s speaking in the house have that immunity.

      • Andrew Geddis 10.3.1

        Parliamentary privilege applies to the occasion, not to the person speaking. Thus, anything said by anyone during a “proceeding of Parliament” (which includes sittings of the House and its committees, but (probably) not party caucus meetings) gets the benefit.

        Point of it is not only to allow full, free and frank debate, but also to prevent courts and Parliament treading on each others toes. So, judges can’t second guess what happens in Parliament, because as a matter of law there is no basis for them to do so. Equally, MPs are meant not to second guess what judges do in individual cases. Separation of powers, and all that.

        • lprent 10.3.1.1

          Ah good point. I did know that – now that the brain has cleared the waking fug.

          On a side issue, what would be the possible argument behind the party caucus meetings? I was trying of think of one and coming up blank. The only thing I could see was related to the recognition of political parties expressed in MMP finally being seen in parliament.

          • Andrew Geddis 10.3.1.1.1

            The argument is that MPs caucusing together is so tied up with parliamentary business that it should count as a “parliamentary proceeding”.

            There is a High Court decision (Rata v A-G) that found this to be the case. The Court of Appeal expressly said this was a wrong conclusion in its decision on Donna Awatere Huata’s expulsion from Parliament … but the Supreme Court then said that this decision was itself not necessarily right (or wrong). Hence the “probably” in my original comment.

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